Industrial Relations Commission of New South Wales CITATION: Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1002 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Joris Zonneveld PARTIES: RESPONDENT South Eastern Sydney and Illawarra Area Health Service FILE NUMBER(S): IRC 1409 of 2008 CORAM: Connor C CATCHWORDS: termination of employment - nursing service - claim of unfair dismissal - allegation of improper conduct with an aged female patient in care - criminal proceedings not pursued against applicant - standard of evidentiary proof of allegations - principles for considering whether or not dismissal was unfair - practicability of reinstatement considered - reinstatement of employee ordered - level of remuneration for loss of earnings considered Evidence Act 1995 LEGISLATION CITED: Health Services Act 1997 Industrial Relations Act 1996 Nurses and Midwives Act 1995 Australian Workers Union v. Colgate Palmolive Pty Limited (1988) 27 IR 420 Bi Lo Pty Limited v. Hooper (1992) 53 IR 224 Briginshaw v. Briginshaw (1938) 60 CLR 336 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 Electricity Commission (New South Wales) t/a Pacific Power v. Crump (1993) 48 IR 296 Hollington v. Hewthorn (1943) KB 587 Jones v. Dunkel (1959) 101 CLR 298 Re Loty and Holloway and the Australian Workers Union (1971) AR 95 CASES CITED: M v. M (1988) 63 ALJR 108 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 PDS Rural Products Limited v. Corthorn (1987) 19 IR 153 Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 Quintano v. B W Rose Pty Limited (2008) 186 A Crim R 448 Rudder v. Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 Subramaniam v. Public Prosecutor (1956) 1 WLR 965 Sydney Ferries Corporation v. Seamen's Union of Australia (2009) 186 IR 99 Van Huissted v. Commissioner of Police (2000) 98 IR 57 Wang v. Crestell Industries Pty Limited (1997) 73 IR 545 Zonneveld v. South Eastern Sydney and Illawarra Area Health Service [2008] NSWIRComm 1119 HEARING DATES: 17/11/2999, 18/11/2009, 19/11/2009, 08/02/2010 DATE OF JUDGMENT: 11 March 2010 APPLICANT Angela Ketas LEGAL REPRESENTATIVES: RESPONDENT Elaine Brus DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 11 March, 2010 Matter No IRC 1409 of 2008 Joris Zonneveld and the South Eastern Sydney and Illawarra Area Health Service Application under S.84 of the Industrial Relations Act, 1996 DECISION [2010] NSWIRComm 1002 Preliminary 1 Mr Joris Zonneveld was employed as a registered nurse by the South Eastern Sydney and Illawarra Area Health Service. He was employed in the Port Kembla Hospital. He is a member of the New South Wales Nurses Association which when his services were suspended and subsequently terminated on Monday, 19 May, 2008 provided some assistance to him. Mr Zonneveld has over 30 years of employment as a nurse, with 19 of those years as a registered nurse. His dismissal flows out of allegations made by an elderly female patient concerning his inappropriate behaviour with her whilst she was an inpatient at Port Kembla Hospital in late 2007. He subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, primarily seeking his reinstatement. At that time police charges had also been laid against Mr Zonneveld over his alleged sexual assault on the patient. 2 The matter was allocated to me and I set it down for a preliminary hearing on Monday, 22 September, 2008. Those proceedings and all subsequent proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. I adjourned the matter for hearing on a preliminary issue on Friday, 31 October, 2008. Mr Zonneveld's Part 6 application was lodged on Tuesday, 26 August, 2008 and it was therefore substantially outside the 21 day time limit prescribed by S.85(1). The SESIAHS had opposed Mr Zonneveld's Part 6 application on that basis but in my preliminary decision of Wednesday, 12 November, 2008 I exercised the discretion given to me under S.85(3) in favour of Mr Zonneveld's Part 6 application, permitting it to go forward for arbitration. I commented (at p.6) of my preliminary decision: "....I believe the balance of convenience favours Mr Zonneveld in this case and, notwithstanding the very lengthy delay in a Part 6 application being lodged on his behalf, I should permit his Part 6 application to proceed. He would certainly be prejudiced if his Part 6 application was aborted without his being given the opportunity to present his case (and ahead of the resolution of the criminal charges against him with respect to which he claims innocence and which appears to be the sole reason for his dismissal). The SESIAHS was initially made aware from the Nurses Association that it would be pursuing a claim for his reinstatement, albeit that it did not proceed at that time and I see no difficulties for it if Mr Zonneveld's Part 6 application is now permitted to go forward..." 3 I subsequently set the matter down for a further mention and programming on Monday, 1 December, 2008 but was informed at that time that the criminal proceedings against Mr Zonneveld remained unresolved. I adjourned the proceedings for mention and further programming on Monday, 23 February, 2009 and Tuesday, 17 March, 2009. On Wednesday, 18 February, 2009 solicitors at that time representing Mr Zonneveld wrote to inform me that the Director of Public Prosecutions had decided to "No Bill" the criminal proceedings. 4 I adjourned the proceedings again for mention and programming on Monday, 20 April, 2009 and Thursday, 11 June, 2009 and for a further conference on Tuesday, 11 July, 2009. Ms Ketas, the counsel now representing Mr Zonneveld, requested a further attempt at conciliation with respect to Mr Zonneveld's Part 6 application but that has failed. I programmed it for arbitration at a mention on Monday, 31 August, 2009. The hearing of the matter was set down on Tuesday, 17 November, 2009, Wednesday, 18 November, 2009 and Thursday, 19 November, 2009 (for evidence) and Monday, 8 February, 2010 (for final submissions). In the hearing Ms Ketas represented Mr Zonneveld and Ms Brus represented the SESIAH. Annexed to this decision is a list of the witnesses called to give evidence in the hearing. The Allegation 5 In late 2007 the aged female patient was staying in the rehabilitation ward of the Port Kembla Hospital following a knee replacement operation. She was transferred for rehabilitation from Wollongong Hospital on Friday, 23 November, 2007 and she was discharged on Wednesday, 12 December, 2007. On Tuesday, 18 December, 2007 she lodged a formal complaint that she had been sexually assaulted by an employee whom she had claimed had identified himself to her as "Joe". There is no dispute that the nurse in question was Mr Zonneveld. The patient claimed in a very detailed formal complaint that: "....on numerous occasions when the male nurse in question assisted me to toilet using a bed pan, he did so in the following manner: * he would pull the curtain around the bed completely - all the other staff only pulled across the curtain between myself and the other patient for privacy; * he did not allow me to maintain my privacy or dignity with a sheet or my nightie - all other staff would just place the pan under my bottom with the sheet and nightdress still covering my body; * he would stand so that he could bend down and look at my 'private area' - my vagina - all other staff would step out of the room and I would call them with my buzzer when I was finished. This made me feel very embarrassed - made my skin crawl. I felt like a '...piece of meat on a slab...' when he was looking down there. I asked him what he was doing when he was standing there and bending down to look and his response was: Oh come on now, don't spoil an old man's fun'. He said this same thing many times. I kept trying to cover myself up but this happened each time he toileted me until I was able to toilet myself. I didn't say anything because I was so embarrassed and I didn't know what to do. He would come into my room happy and smiling and would say to me: 'Hello my little chickadee, how are we today?' So everyone could hear. The other female patient in my room did not speak very much English and 'Joe' did not shower or toilet her as far as I am aware, which I thought was very odd. Usually 'Joe' wasn't our nurse - it was usually a nurse by the name of 'Kim' - but 'Joe' would still come in to toilet me if I buzzed..." 6 Then in her lengthy formal complaint, the patient recorded the principal issue of concern to her, viz: "...The main incident occurred approximately 5 or 6 days before I was discharged, in the shower area of my room. Because of the whole situation I find that it is hard to be clear on dates. 'Joe' came into the room and informed me that he was there to assist me to shower. He was happy and smiling. He collected my clean clothes and a towel. He assisted me from the bed onto the shower commode chair. He pushed me into the shower room. He locked the adjoining door (into the other room). He assisted me to undress. He turned on the water and asked if the temperature was okay - I said yes. He wet me all over. I held out my hand for the soap and washer. He didn't give it to me. I said that I can wash the front of my body. (I usually did this with the other nurses.) 'Joe' said: Don't worry, sit back, relax and enjoy it.' He proceeded to wash my breasts. He took a very long time doing this. I felt very frightened. (This wasn't right.) It was only me and him in the room and the other patient outside couldn't speak English. I didn't know what I was thinking. I was just very frightened and I thought he was going to rape me. I was paralysed with fear. I was naked. My knee was in stitches. I couldn't walk without my walker. 'Joe' continued to wash the rest of my body. He then bent down and reached under the shower/commode chair (which had a large hole so it could be manoeuvred over the toilet) and washed my vagina. He then put his fingers inside my vagina and wiggled them around. He looked into my eyes while he was doing this. I was so embarrassed. I turned away from him. He stopped and turned the water off. He handed me a towel and started drying my back and legs. He said nothing during this process. He assisted me to get dressed and I asked to put a bra on. He said: 'I'm better at undoing them than doing them up.' He didn't put my bra on. I saw him on the ward after the assault but 'Joe' did not shower or toilet me after this incident. I saw him the day before I was discharged and he spoke to me and said something about: 'Things happen, and it all being in good fun.'..." 7 The patient concludes her formal complaint: "...Since I have come home I have thought about it a lot and realise that what happened was wrong. I am very concerned that he may hurt someone else, that he may be doing this to other patients and I need to inform someone and have decided to report the incident... I am so upset by this whole thing, so embarrassed; I don't understand why he did this to me. I have been in hospital many times before and have been showered by male nurses before without any problems. The male nurses have always asked if I was happy to be showered by them or if I preferred a female nurse. They never did anything to make me feel embarrassed or uncomfortable. They were always very professional..." Because the patient suffers from arthritis in her hands and has difficulty writing, she was assisted in preparing that letter of complaint by a local home and community care co-ordinator who acted as her advocate and scribe. Challenge to the Admission of the Evidence of the Patient's Complaint 8 These are very serious allegations, of course. The patient was not a witness in the hearing, however. Nor was the home and community care co-ordinator who acted as her scribe when she made the complaint. Ms Kestrel Leevers, a workplace relations officer for the SESIAHS, called to give evidence in the hearing by Ms Brus, outlined the steps taken unsuccessfully to locate the patient to give evidence in the hearing. She telephoned the patient at the telephone number from the hospital records. That is now a vacant number. She then contacted the co-ordinator to be told that the patient was no longer residing at her former address but she would attempt to contact the patient's daughter with whom she still apparently had contact. The co-ordinator told Ms Leevers that she had asked the daughter to contact her but the daughter has not done so and the co-ordinator refused to give Ms Leevers the telephone number for the daughter. Ms Leevers has assumed, no doubt correctly, that the daughter is simply trying to protect her mother and does not want her to be involved any further over the incident. Ms Leevers has checked the telephone directory, the electoral role, local nursing homes and police records for the patient with no success. 9 Ms Ketas had initially argued that I should not accept any statement the patient had made in her formal complaint into evidence, since it could not be tested in cross-examination. That is certainly the position and it has made my task considerably more difficult because effectively there is little by way of evidence to really contradict Mr Zonneveld's version of events which I will outline later in this decision. 10 Clause 4 of the dictionary for the 1995 Evidence Act requires that a party asserting that a particular person is not available as witness in any proceedings must establish that "...all reasonable steps..." have been taken to locate that person. She submitted that Ms Leevers had not taken "...all reasonable steps...", suggesting that the services of a private investigator may have also been used [Quintano v. BW Rose Pty Limited (2008) 186 A Crim R 448 at pp.452 and 453]. I disagree. I am satisfied that, in the circumstances, Ms Leevers has done all that could be reasonably expected of her to locate the patient. In any event, as I pointed out to Ms Ketas, the Evidence Act is not binding on me. By virtue of S.163(1)(b) the State Commission: "...is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just..." 11 Of course, that does not mean that customary restrictions on hearsay evidence in any litigation should be ignored in these proceedings. I note particularly in that respect comments made by Walton J - Vice President of the Commission in Van Huissted v. Commissioner of Police (2000) 98 IR 57 at p.96, viz: "...The applicant correctly pointed out that, although the Commission is not bound by the rules of evidence, this does not mean that the admission of evidence is unrestrained. Commonsense dictates that the Commission receive only evidence which is relevant to an issue which requires determination in order to decide the case: see PDS Rural Products Limited v. Corthorn (1987) 19 IR 153 at p.155. The requirement that the Commission '...inform itself on any matter in any way that it considers to be just...' [S.163(1)(b)] and exercise its functions according to '...equity, good conscience and the substantial merits of the case...' [S.163(1)(c)] demand that it consider any unfairness or prejudice which would be suffered by a party as a result of the admission of certain evidence. The admission of hearsay material containing evidence which is prejudicial to a party, but cannot be tested through cross-examination, has obvious potential to cause serious disadvantage to that party..." 12 Also ordinarily the failure to call a relevant witness to give evidence in a hearing does raise an inference in favour of the other party's evidence [Jones v. Dunkel (1959) 101 CLR 298]. However, in the light of Ms Leevers evidence, the reason why the patient was not called in this case is clear enough. Despite reasonable attempts, they were not able to locate her. That does not raise any adverse inferences against the SESIAHS in my mind. 13 The patient's complaint concerning Mr Zonneveld is, of course, still very relevant in these proceedings. Indeed, it is the reason for his dismissal. In the circumstances, whilst in the absence of the patient for cross-examination in this hearing, the details contained in her letter of complaint may not necessarily be accepted into evidence to establish the truth of the allegation, I am still content to admit the letter of complaint into evidence on the basis that it was actually made by the patient and that it forms the basis of the subsequent investigation carried out by the SESIAHS [Subramaniam v. Public Prosecutor (1956) I WLR 965]. The persons involved in that investigation - Ms Margaret Savage, the manager of the professional practice unit [PPU] for the SESIAHS, and Mr Nouran Tawfiq, the principal investigating manager of the unit - were called to give evidence in this hearing by Ms Brus. The Internal Investigation 14 The SESIAHS wrote to Mr Zonneveld on Thursday, 20 December, 2007 to inform him of the patient's allegation. He was suspended and directed to attend an interview on Thursday, 3 January, 2008 but, on the advice of the Nurses Association, he declined to do so at that time. It was Mr Tawfiq who appears to have had the major part of the SESIAHS investigation of the allegations but due to the nature of the allegations, it was considered appropriate that the interview of the patient be conducted by Ms Savage. She contacted the home care co-ordinator to arrange for a meeting with the patient and that meeting occurred on Friday, 4 January, 2008. 15 It was Ms Savage's intention at the meeting with the patient to determine if she showed any confusion over the allegations she was making against Mr Zonneveld and whether or not her complaint had in any way been coloured or influenced by the co-ordinator who had helped her commit her complaint to writing. At the meeting she ensured that the co-ordinator did not prompt or interrupt the patient as she outlined the incident contained in the letter of complaint. She was satisfied that the patient was lucid and able to independently confirm the complaint she made in sufficient detail to convince her of the genuineness of her beliefs. 16 Mr Zonneveld was interviewed by police on Friday, 4 January, 2008 and charged with aggravated sexual assault. He was subsequently interviewed by Mr Tawfiq, with a representative of the Nurses Association, on Tuesday, 22 January, 2008. Mr Tawfiq subsequently provided a report, incorporating the report of Ms Savage. That report was dated Thursday, 21 February, 2008. It dealt with three allegations against Mr Zonneveld, covering the period from Friday, 23 November, 2007 (shortly after the patient was admitted for rehabilitation) and Friday, 12 December, 2007 (the date of the patient's discharge), viz: (i) that he had made inappropriate comments to the patient; (ii) that he acted inappropriately while assisting the patient with a bedpan; and (iii) that he sexually assaulted the patient whilst showering her. Mr Tawfiq found those three allegations sustained to his satisfaction, on the balance of probability. 17 I am satisfied that the procedure Mr Tawfiq and Ms Savage adopted was very comprehensive. Nevertheless, I am obliged to form my own independent conclusions concerning the allegations made against Mr Zonneveld based on the evidence adduced before me and not on the outcome of the internal investigation of Mr Tawfiq and Ms Savage. To that extent, the test discussed by the Full Bench of the South Australian Industrial Commission (Stanley P, Cawthorne CP and Stevens C) in Bi Lo Pty Limited v. Hooper (1992) 53 IR 224 emphasising the results of any internal investigations rather than an independent view by the member of the tribunal hearing the matter, does not apply in Part 6 proceedings - see, for instance, the unreported decision of the Full Bench of the Commission (Sams DP, Boland J and Grayson DP) on Thursday, 19 April, 2007 in Rudder v. Booroongen Djugun Aboriginal Corporation [Matter No. IRC 2539 of 2006 at pp.8 and 11]. 18 The Nurses and Midwives Registration Board of New South Wales was informed of the allegations made by the patient on Tuesday, 4 March, 2008 and informed of Mr Zonneveld's suspension. The Board wrote requesting the report of Mr Tawfiq and Ms Savage. On Monday, 8 September, 2008 the Board wrote to Mr Zonneveld informing him that by an order made pursuant to S.48 of the 1991 Nurses and Midwives Act, certain restrictions would be imposed on his registration as a nurse, viz: "...* Cannot work unsupervised and must be under direct supervision of another registered nurse, who is not subject to conditions. * Advise the Nurses and Midwives Board of all your nursing employers. * Advise all future nursing employers of the conditions imposed. * Authorise your employers to advise the Board of any breach of these conditions ...." I understood that the Nurses Association has made representations on Mr Zonneveld's behalf to the NMRB. When the hearing recommenced on Monday, 8 February, 2010 Ms Ketas informed me that those restrictions on Mr Zonneveld's registration as a nurse had very recently been removed and there were no longer any restrictions on Mr Zonneveld's work as a registered nurse. The Dismissal 19 On Thursday, 15 May, 2008 Mr Zonneveld's services were terminated by the SESIAHS. Mr Terry Clout, the SESIAHS chief executive, whose decision it was to terminate Mr Zonneveld's services summarily, wrote to him on Thursday, 15 May, 2008 in the following terms: "....I...am of the view that the outcome of the investigation by the PPU stands and continuation of your employment is unacceptable. On this basis I must advise your services will be terminated effective immediately on the grounds of serious misconduct and breach of the Code of Conduct..." A letter was forwarded to the patient on Monday, 21 July, 2008 and to the Nurses and Midwives Board on Friday, 25 July, 2008 informing them of the decision to terminate Mr Zonneveld's services. 20 Mr Clout was called to give evidence in the hearing by Ms Brus. In a written statement which formed the basis of his evidence in this hearing Mr Clout recorded: "....The applicant, like all SESIAHS staff, was required to behave appropriately at all times whilst on duty and to observe all of the SESIAHS and New South Wales Health policies. All staff within SESIAHS are expected to behave and practice in a manner consistent with the New South Wales Code of Conduct... The applicant's conduct expressly breached the Code of Conduct... I place great importance on maintaining community confidence in SESIAHS. The applicant's conduct has the potential to bring SESIAHS and the nursing profession as a whole into disrepute. The inherent trust between SESIAHS, the nursing profession and the community is imperative to the effective delivery of health care and the applicant's conduct had the potential to jeopardise this. The applicant's behaviour towards the complainant was offensive, unsolicited and abusive. The applicant failed to carry out his duties while demonstrating respect and dignity towards his patient. The applicant failed to recognise and manage the power imbalance between a nurse and a vulnerable patient... Clinicians are also expected to abide by the Codes of Conduct applying to their profession..." 21 Ms Ketas suggested that because at that time there were still unresolved criminal proceeding against Mr Zonneveld, and whilst he had a right to remain silent with respect to such possible criminal proceedings, Mr Clout's decision to terminate Mr Zonneveld should have been delayed. She highlighted the fact that Mr Zonneveld had already volunteered, through an e-mail from the Nurses Association on Sunday, 27 April, 2008, to take annual leave and long service leave to await developments concerning the possible police charges. That suggestion was not taken up by the SESIAHS. The Evidence of Mr Zonneveld 22 Mr Zonneveld was called to give evidence in this hearing by Ms Ketas. He described the patient in his evidence, as he recalled her, as fairly lucid but he asserted that she was simply mistaken and confused over her allegation and that the incident in the shower did not happen. Medication or the after-effects of the surgery may have had the effect of leading to some confusion on her part. But the letter of complaint from the patient does not give me the impression that the patient was confused at all. That certainly was Ms Savage's opinion. 23 According to Mr Zonneveld, on Thursday, 6 December, 2007 the patient had informed him that she was constipated and Mr Zonneveld had assisted her by lubricating his finger and inserting it in her rectum. The patient had agreed to that course of action. The examination discovered hardened faeces and he subsequently inserted a glycerine suppository and assisted her with her subsequent bowel movements when there was no result from the suppository, lubricating the patient's anus and removing the faeces as it was extracted before it retracted again in her rectum. Because his initial examination of her rectum was intrusive, he appears to believe that she has confused that incident with the alleged incident in the shower. 24 There are conflicting views by medical practitioners that the medication that the patient was on at the time could have led to a confused state and that the patient may not at the time have been able to distinguish between the assistance Mr Zonneveld gave her to evacuate her bowels and the alleged invasion of her vagina. According to Mr Zonneveld, Ms Kim O'Donnell, an enrolled nurse, was present at the time but Ms O'Donnell, who was called as a witness in the hearing by Ms Brus, does not recall Mr Zonneveld undertaking a bowel evacuation procedure on the patient. Nor are there any clinical notes to confirm that the bowel evacuation procedure was undertaken by Mr Zonneveld. Moreover, as Ms Brus indicated in her submissions, Mr Zonneveld only raised the issue of the bowel evacuation of the patient some considerable time later - seven months. 25 Mr Zonneveld claimed that it was his customary practice to address patients in a light hearted and jovial manner which he does with the deliberate intention of lightening the atmosphere and trying to encourage patients to be content with their circumstances. He claimed that he often commented to female patients with words to the following effect: "Morning all!" Or: "Thanks sweetie." Or: "Hello chickens." Or: "Thanks chicken." Mr Zonneveld claimed never to have used the word "chickadee" when talking to female patients. 26 When patients were having their meals Mr Zonneveld claimed he sometimes would say: "Mmm, must be good. You are all quiet. You have your snouts in the trough." Mr Zonneveld concedes that he sometimes uses the following expression when talking to patients: "Things happen, and it all being in good fun." He cannot recall doing so at the time the patient who made the complaint was discharged and he did not mean the expression to have any sexual connotations. 27 He conceded that he has used the expression when talking to the patient: "Don't spoil an old man's fun." But he denies that he said that in the manner that the patient claims, ie when she was using a bedpan. He asserted that he commented in that manner when he was giving the patient a subcutaneous injection and asked her whether she wanted the injection in her abdomen or her thigh. He claimed that the patient laughed in response to his comment. That explanation does not make any sense to me at all. It is a very strange thing for a nurse to say - suggesting that he was having fun by giving an injection to a patient. He denies that he implied anything sexual with the comment but to my mind the comment does have an offensive sexual connotation. 28 Mr Zonneveld claimed that on Monday, 3 December, 2007 he was called upon to assist the patient who had made the complaint against him with her showering. He assisted the patient from her bed onto the commode chair and wheeled her from to the shower which is a shared ensuite in the room. He removed her nightdress and assisted her in undoing her brassier. He cannot recall whether she had pants on or whether he had assisted her in removing them. 29 He then turned on the water for the shower and adjusted the temperature with the assistance of the patient. He claimed that he left the patient for a time, saying: "Sit back, relax and enjoy it."...." Meaning, he claimed, that she should leave the warm water on and just enjoy her shower and a nurse would come later on her bell. 30 Mr Zonneveld asked the patient if she wanted her hair washed. She informed him that she had washed her hair on the previous day. He took the shower hose off the hook and wet her down. The patient informed him that she could wash her own front and he gave her a cake of soap and a washer, saying: "That leaves me with your back, your bottom and from your knees down." She agreed. He asked her for the soap to lather a washer. He put the shower hose back on its hook and stood away from the patient so he would not get water on him. Then while the patient washed her front he washed her back and bottom. He then turned the commode chair so that the patient was facing him and washed her from the knees down from the front and back of her legs. He recorded in a written statement which formed the basis of his evidence that: "...while I was carrying out that function I am not aware that I made contact with (the patient's) vagina in any way. At no time during the course of washing her bottom did I insert my finger in (her) vagina..." According to Mr Zonneveld, the patient said nothing to him to give him the impression she was upset when he was washing her bottom. 31 Mr Zonneveld finished washing the patient's legs. He retrieved the shower hose off the hook and rinsed her down by spraying water onto all parts of her body. He then returned the shower hose to the hook and turned off the water. He handed the patient a towel so that she could dry the parts of her body that she was able to do and he dried her back, her bottom and her legs. He claimed that when he was wiping her bottom at no stage did he insert his finger in her vagina. 32 When the patient was dry, Mr Zonneveld assisted her in dressing. He handed over her bra so that she could put it on. She put it over her shoulders and he assisted her to try and do it up at the back. He was apparently experiencing some difficulties in doing the bra up and he admitted that at that point he said: "I am better at undoing them than doing them up." Mr Zonneveld fastened the bra and assisted further in the patient dressing. As far as he can recall, he pulled up her underpants and slacks and settled her back into the commode chair. He then took her back into her room and put away her belongings. He does not recall whether he had taken her to the dining room or whether she remained in her own room. Conclusion 33 My task in this hearing falls under three headings, viz: (i) to firstly determine whether or not the dismissal of Mr Zonneveld is justified in the circumstances, ie whether or not, using the term approved by Sheldon J of the former State Industrial Commission in Re Loty and Holloway and the Australian Workers Union (1971) AR 95 at p.99, there had been a "...fair go all round..." or, more accurately, whether or not, using the actual language of S.84(1), his dismissal was "harsh", "unreasonable" or "unjust" [ Busways v. Johnson (1994) 55 IR 255 at p.261]; (ii) if I conclude that the dismissal of Mr Zonneveld was unfair, to secondly determine the appropriate remedy for him - reinstatement [S.89(1)], re-employment [S.89(2)] or monetary compensation in lieu thereof [S.89(5)], with preference always being given to reinstatement or re-employment over monetary compensation [ Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346 and Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 at p.115]; and (iii) if I consider that reinstatement (or re-employment) remains the most appropriate remedy for Mr Zonneveld, to determine whether or not he is entitled to be paid for any of his lost earnings since his dismissal [S.89(3)]. 34 Firstly, the question of unfairness. Of course, Mr Zonneveld's dismissal would not be unfair if the allegation against him was properly established. The fact that the criminal proceedings against Mr Zonneveld were aborted by the "No Bill" does not automatically bring these Part 6 proceedings to a close in favour of Mr Zonneveld, however. Watson J of the former Commission commented on the situation in Australian Workers' Union v. Colgate Palmolive Pty Limited (1988) 27 IR 420 at p.427 as follows: "…It is not unusual for events which lead to the dismissal of an employee to involve criminal proceedings. It has been held that an acquittal does not necessarily result in an order for reinstatement. The conclusion of the commissioner could in no way be relevant in deciding the police charge. Similarly, the conclusion of the magistrate does not determine the event in this appeal…" As a general rule, as Watson J explained in Australian Workers' Union v. Colgate Palmolove Pty Limited , decisions of the criminal courts do not bind civil courts and vice versa [ Hollington v. Hewthorn (1943) KB 587]. 35 Where criminal charges against an employee have been dismissed - or, as in this case with Mr Zonneveld, not ultimately pursued - but the employer still maintains its allegations against the dismissed employee and the employee denies those allegations, the onus of proof rests with the employer [Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 at pp.83 and 84]. The Part 6 hearing proceeds according to the civil standard of proof - the balance of probability - and not the criminal standard of proof beyond reasonable doubt [Briginshaw v. Briginshaw (1938) 60 CLR 336 at p.362]. The Full Bench of the Commission (Cahill VP, Hill J and French C) commented in that respect in Wang v. Crestell Industries Pty Limited (1997) 73 IR 545 at pp.463 and 464: "....The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v. M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v. Briginshaw ..." 36 Mr Clout in his evidence indicated that his decision to terminate the services of Mr Zonneveld was based on his obligations to protect the interest of patients in care. It is proper for him to do so. S.119 of the 1997 Health Services Act provides: "The protection of a public health organisation's patients and clients and children for which it is responsible is to be the paramount consideration in relation to determining whether to take disciplinary action against a staff member under this Part." And Mr Clout commented in his written statement: "...SESIAHS has a duty of care to patients and clients utilising services and the best interests of patients and clients must be maintained in decision making. I was required by law to make the protection of SESIAHS's patients the paramount consideration when deciding on disciplinary action in response to the applicant's conduct..." He added further in his evidence: "....Do I accept the information when it is a situation in some cases of one person's word against another?... I then say, okay, in the public interest, can I afford to have the doubt of a risk to the patient into the future in respect of the circumstances that arose. And in this case, my view was there were sufficient issues there that I had major concerns with in relation to the conduct which were not in dispute for me to come to the view that in relation to that confidence and that trust, that absolute trust I could not have the confidence that would exist..." 37 But if the emphasis for the SESIAHS is always on patient care in disciplining staff - quite proper, no doubt - I do not see my jurisdiction in this hearing in quite the same light. It is, of course, appropriate that I have regard to patient care in determining claims under Part 6 because the need to ensure patient care is, of course, fundamental to the work of nurses. But the emphasis in Part 6 proceedings should still be on ensuring fairness to the dismissed employee - whether the dismissal was, to use the language of S.84(1), "harsh", "unreasonable" or "unjust". It is S.84(1) of the State IR Act which governs these proceedings, not S.119 of the Health Services Act. S.121(2) of the Health Services Act confirms that position, viz: "Nothing in this Part affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 or any other statutory right that a member of staff may have in relation to the termination of his or her employment under this Part. However, in exercising its functions under that Part, the Industrial Relations Commission is to have regard to S.119 of this Act." 38 I have concluded from the evidence of Mr Clout, Mr Tawfiq and Ms Savage that, where there remains doubt concerning the disciplining of an employee, it is always resolved in favour of patient care and therefore presumably sometimes against the interests of the dismissed employee. But in Part 6 proceedings, the benefit of any doubt should still be given to the dismissed employees - in this case according to the civil standard of proof dictated by Briginshaw v. Briginshaw. It goes without saying that if the allegations against Mr Zonneveld are not proven according to that standard, then the dismissal should not stand. To that extent, if there is any conflict between State legislation such as the Health Services Act, on the one hand, and the State IR Act, on the other hand, such a conflict in Part 6 proceedings must, in my opinion, be resolved in favour of the State IR Act. 39 Whilst the patient has been able to outline in considerable detail the nature of the allegations she makes against Mr Zonneveld, there appears to me to be the possibility that she is in error over some of her assertions in the letter of complaint from the patient, viz: * It must be recognised that the patient was recovering from surgery at the time and the aftermath of that surgery and, notwithstanding some medical evidence before me to the contrary, any medication she was taking may still have meant that her recollections of events was somewhat more cloudy than normal. * Notwithstanding Ms Savage's confidence that the co-ordinator had not influenced the patient in her recollections when she wrote out her complaint, there remains the possibility that may still have happened unintentionally. * The patient recorded in her letter of complaint that the incident in the shower occurred "...approximately 5 or 6 days before I was discharged...". Mr Zonneveld was rostered off work at that time. The patient has readily conceded in her letter that "...it is hard to be clear on dates...". Mr Zonneveld's evidence that as far as he can recall he only assisted the patient in the shower once - on Monday, 3 December, 2007 - 14 days before the patient's discharge. Nursing notes show that he, in fact, also showered the patient on Saturday, 24 November, 2007 but certainly not on the days which the patient claims. As Ms Brus suggested in her submissions, as far as patients in hospitals are concerned, every day would be much the same and so not a great deal should turn on discrepancies as to dates. But certainly there is a conflict on the dates the patient recalls which to my mind must undermine her other recollections. * Whilst in her letter of complaint the patient recalls with some considerable detail instances where Mr Zonneveld acted inappropriately when he gave her a bedpan, Mr Zonneveld does not recall ever placing the patients on a bedpan. Two other nurses helped care for the patient. One nurse could not recall the patient ever using a bedpan. The other nurse said that the patient had used a bedpan at night at first but was subsequently provided with a commode by her bed so that she did not have to walk to the toilet. One of the patients who shared the same room for the first few days also cannot recall a bedpan being offered to the patient. (The other patient in the room has since died). Mr Zonneveld was not often on night duties and the patient's recollection that he was always the one who came when she buzzed for a bedpan cannot be correct. * Ms Ketas has suggested that the patient was "...certainly not a patient who had difficulty in voicing her objections..." and on one occasion when the nurses were not answering her buzzer she had contacted her daughter to get the nurses to go and see her. It is therefore surprising that she would not have similarly raised her concerns over the incident involving Mr Zonneveld earlier with her daughter or somebody else. * The patient complaints that on the day before she was discharged, Mr Zonneveld had made the comment that "...things happen, and its all being in good fun...". Ms Ketas indicated that Mr Zonneveld was not rostered on duty at that time. Whilst Mr Zonneveld does not deny using expressions like that, he did not apparently do so at the time indicated by the patient. * Notwithstanding some medical opinions to the contrary, Mr Zonneveld may be correct in his assertion that the patient is confused in her complaint over the incident where he assisted her when she was constipated and in the process inserted his finger in her rectum and not her vagina. No doubt that would have been an unpleasant experience for the patient but one which apparently had her consent. 40 I note that in 1992 Mr Zonneveld was interviewed over complaints made from female nursing staff regarding his inappropriate use of sexual innuendo in conversation with both staff and patients and insensitive remarks to the husband of a staff member on maternity leave. He disagreed that his comments were inappropriate or insensitive but he was requested to be aware of this problem. A subsequent staff appraisal of Mr Zonneveld in the middle of 1993 noted that Mr Zonneveld "...needs to be aware that at times he comes across as overly familiar...". 41 It may be the position that Mr Zonneveld speaks in the manner he does to patients, as he suggested in his evidence, to relax them while they are in hospital but it appears to me that from time to time his conduct and comments to patients, particularly female patients, whilst not meant by him to cause offence, may in fact do so. His comment that he was better at undoing the patient's brassiere than doing them up is one such inappropriate comment. Not everybody appreciates flippant comments of the type to which he has admitted. 42 Nevertheless, on the balance of probability, according to the standard dictated by Briginshaw v. Briginshaw, and in the absence of the patient who made the initial complaint to give evidence, I do not believe that a case has been made out for the dismissal of Mr Zonneveld. He may have at times spoken inappropriately and behaved far too familiar with the patient (and apparently other patients in his care from time to time), I do not believe that he did so other than, as he says, to relax the patient. His conduct is worthy of censure, and some further counselling perhaps - but, in my opinion, not grounds for his dismissal. The allegation of the sexual assault in the shower, which is the significant part of the patient's complaint is, of course, a most serious matter - and clearly grounds not only for dismissal but criminal charges. But I am not satisfied that there is evidence before me to actually establish that offence by Mr Zonneveld. 43 I have also been influenced in my decision in this matter by the lengthy period of relatively satisfactory employment of Mr Zonneveld as a nurse. I note particularly that Ms O'Donnell recorded in the written statement that: "....I have been made aware of the allegations made by (the patient) with regard to Mr Zonneveld. I could not see Joe doing what is alleged. During the period of time we worked together I know Joe has assisted hundreds of patients and I cannot recall any complaints of a serious nature. A patient may have complained about what was said to him/her. That would be the most serious thing that has occurred..." 44 Secondly, the question of remedy. As I indicated earlier in this decision, the primary remedy for an unfairly dismissed employee is reinstatement in employment under S.89(1) or re-employment under S.89(2). But if that proved to be impracticable, an unfairly dismissed employee would be confined to the remedy of monetary compensation in S.89(5). Mr Zonneveld has indicated in his evidence that he is anxious to return to work as a registered nurse in the hospital where he formerly worked. Whilst the restrictions imposed on his employment by the NMRB - that he not be permitted to work unsupervised or without the direct supervision of another registered nurse - the question remained whether his reinstatement as a registered nurse for the SESIAHS was, in fact practicable. I do not believe that it would have been. 45 And that would normally lead me to determine Mr Zonneveld's claim under S.89(5), viz: "If the applicant has been dismissed and, in determining the claim, the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant, within a specified time, an amount of compensation not exceeding six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave." The word in S.89(5) is "impracticable" - meaning "unworkable", "inexpedient" or "unrealistic" - not "impossible". But the restrictions imposed on Mr Zonneveld by the NMRB would, in my opinion, have denied him the primary remedy of reinstatement under S.89(1) and ultimately lead to the matter being determined under S.89(5). Mr Clout's evidence was that Mr Zonneveld may not currently work effectively for the SESIAHS with those restrictions in place and I believe that he is correct in that assertion. 46 Nevertheless, those restrictions have recently been removed by the NMRB. In my opinion, there is now no barrier to Mr Zonneveld's reinstatement in employment with the SESIAHS and I see no reason why he should not return to his former position in the Port Kembla Hospital. In terms of S.89(4), continuity of his employment with the SESIAHS should be preserved. 47 Finally, there is the question of any payment under S.89(3) to Mr Zonneveld for losses he incurred due to his dismissal. The Full Bench (Boland J - President, Walton J - Vice President and Sams DP) commented in that respect in Sydney Ferries Corporation v. Seamen's Union of Australia (2009) 186 IR 99 at p.118: "....It is a common practice in unfair dismissal cases where an order for reinstatement is made, for orders of back pay (or, more correctly described, lost remuneration) to be tailored according to any identified culpability of the applicant as to the circumstances surrounding his/her dismissal. Thus, in cases where misconduct may be found by the Commission to be proven, but not necessarily justifying dismissal (as is the case here), or in the circumstances where a dismissal is found to be too 'harsh' (again, as is the case here), a lesser amount, or no amount at all, may be considered as a 'penalty' for the applicant's conduct. There is nothing inherently wrong in this approach: see Electricity Commission (New South Wales) trading as Pacific Power v. Crump (1993) 48 IR 296. In the present case, we do not consider it appropriate or just for (the dismissed employee) to receive back pay, given his contribution to the circumstances that led to his dismissal..." To that I might add that the conduct of the employer may be relevant in assessing any amount of remuneration for loss of earnings. If, for instance, the employer had unnecessarily delayed the resolution of this matter, that may also be a factor to be borne in mind when assessing the level of such remuneration. 48 I am satisfied that the delay in bringing this matter to a conclusion was not the fault of the SESIAHS. Moreover, whilst I have formed the view that there is insufficient evidence to support the very serious allegation against Mr Zonneveld in this hearing, I have formed the view that he was not entirely blameless. His inappropriate comments to patients, with respect to which he has received counselling in staff appraisals, and his familiarity with patients is something which I believe has contributed to the complaint ultimately made about him. As Ms Brus indicated in her submissions, a nurse should treat all patients with dignity and respect. 49 Moreover, as Ms Brus has submitted, Mr Zonneveld appears not to have taken any steps to really mitigate his loss of earnings. I understand that his wife is presently ill and that may have acted to limit his employment opportunities. No doubt the fact that he had lost his registration as a nurse for much of the time that he was unemployed would have also acted to limit his employment but other employment opportunities may still have presented themselves to him. 50 Those are all factors to be weighed up in assessing any order for remuneration to cover loss of earnings. In my opinion, S.89(3) - like S.89(5) which provides compensation in lieu of reinstatement or re-employment - is not something which should follow a particular mathematical formula. As the Full Bench (Wright J - President, Walton J - Vice Presdent and Tabbaa C) indicated with respect to S.89(5) in D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 at p.363: "....the power in the Commission to make a money order, subject to the limitation on the quantum of compensation, and the matters required to be taken into account by S.89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in S.89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money for compensation made..." 51 In those circumstances, I make the following order: O R D E R 1. the South Eastern Sydney and Illawarra Area Health Service shall: (a) reinstate Mr Joris Zonneveld in employment to his former nursing position; (b) pay him the sum of $28,000.00 within 28 days; and (c) take his employment not to have been broken by his dismissal. 2. This order shall take effect on and from Thursday, 11 March, 2010. P J CONNOR Commissioner LIST OF WITNESSES *Bokey Elie (Professor) Professor of colon and rectal surgery Clout, Terry chief executive of the SESIAHS Leevers, Kestrel workforce relations officer Morrison, Louise deputy director of nursing O'Donnell, Kim enrolled nurse *Olesen Kim area director of nursing and midwifery *Poulos, Chris (Dr) senior staff specialist Savage, Margaret manager of professional services Tawfiq, Nouran principal investigation manager Zonneveld, Joris applicant *Evidence admitted without the witness being required for cross-examination MR ZONNEVELD'S ROSTER FOR RELEVANT PERIOD Date Shift 19.11.07 Evening 20.11.07 Evening 21.11.07 Afternoon 22.11.07 Rostered Off 23.11.07 Rostered Off 24.11.07 Morning 25.11.07 Morning 26.11.07 Evening 27.11.07 Morning 28.11.07 Rostered Off 29.11.07 Rostered Off 30.11.07 Afternoon 1.12.07 Evening 2.12.07 Afternoon (in charge) 3.12.07 Morning 4.12.07 Rostered Off 5.12.07 Rostered Off 6.12.07 Morning 7.12.07 Morning 8.12.07 Morning 9.12.07 Evening 10.12.07 Rostered Off 11.12.07 Flexi-Day 12.12.07 Evening 13.12.07 Afternoon 14.12.07 Afternoon 15.12.07 Morning 16.12.07 Rostered Off 07/05/2010 - Correction of opening paragraph which orignally showed the wrong hospital as Mr Zonneveld's place of employment. - Paragraph(s) Paragraph 1 19/05/2010 - Correction of a typing error - Paragraph(s) para.46 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.